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Staver Uses the ‘We Used to Lock Them Up’ Argument

I wrote a while back about a hilarious brief filed in the Michigan same-sex marriage case that said that there can’t be a right to same-sex marriage because, in essence, “hell, we used to be able to lock up or shoot them bastards.” Mat Staver, the dumbest lawyer in America not named Mat Staver, tries a slightly more sophisticated version of that same argument:

A fundamental right in constitutional law has to either be specifically articulated in an enumeration of the Constitution — so a fundamental right would be freedom of speech, freedom of religion, so it’s part of the First Amendment, it’s actually absolutely articulated — and if it’s not articulated, the court has said it has to be deeply rooted in our history such that if you were to not protect it, it would literally unravel the concept of ordered liberty that is so essential to who we are and it is so deeply rooted in our history that you have to protect it. Parental rights can be something that falls within a category such as that.

Now, here, obviously, the issue is, did same-sex marriage become a fundamental right? And the answer clearly is no. If they really were honest, it’s no. And to the contrary, same-sex marriage or homosexuality has always been considered a crime against nature. Instead of protection deeply rooted, it’s been something that’s been criminalized in our culture, not just in America but around the world.

Leaving aside the fact that the Supreme Court’s division between a “fundamental right” and a “mere liberty interest” is nonsensical and drawn out of thin air from a single footnote in a decision about 80 years ago, let’s think about the implications of this. By his reasoning, Brown v Board of Education must have been wrongly decided because segregation was “deeply rooted in our history” and desegregation was a completely new idea. And Loving v Virginia must also be wrong because laws banning interracial marriage had existed from the dawn of the nation. But there’s now way Staver would admit that, of course, because it would show his argument to be nonsense.

Comments

  1. mmfwmc says

    Mat Staver, the dumbest lawyer in America not named Mat Staver,

    Wow. You mean he’s now officially dumber than Larry Klayman? :)

  2. John Pieret says

    But there’s now way Staver would admit that, of course, because it would show his argument to be nonsense.

    But … but … if you take away nonsense, Staver wouldn’t anything at all to say! Oh! … never mind …

  3. hunter says

    Like Antonin Scalia, Staver has managed to come up with an answer to the wrong question. His “argument,” if you want to dignify it as such, is completely backwards: marriage is a fundamental right. (And the Court, in finding that it is, indeed, fundamental, has consistently refused to limit it by modifiers — there is no right to “interracial marriage,” or “deadbeat dad marriage,” or “convicted felon marriage,” there is only a right to marriage.)

    So the question is, what government interest is served by excluding same-sex couples from enjoying the privileges and responsibilities of a fundamental right? So far, they haven’t managed to come up with one.

    And I’m not even a lawyer.

  4. caseloweraz says

    Ed: By his reasoning, Brown v Board of Education must have been wrongly decided because segregation was “deeply rooted in our history” and desegregation was a completely new idea. And Loving v Virginia must also be wrong because laws banning interracial marriage had existed from the dawn of the nation.

    And, conversely, provisions of the Bill of Rights, that are enshrined in our Constitution from the earliest days of our republic, are often ignored by the people opposing same-sex marriage. Most prominent among them, of course, is the separation of church and state. But I might also mention respect for science and education, which they tend to honor more in the breach than the observation.

  5. Chiroptera says

    …and if it’s not articulated, the court has said it has to be deeply rooted in our history such that if you were to not protect it, it would literally unravel the concept of ordered liberty that is so essential to who we are and it is so deeply rooted in our history that you have to protect it.

    Like being able to vote without having to showing picture ID?

  6. Mike Morris says

    I am not certain good ol’ Mat wouldn’t pine for the days when Loving wasn’t the law. You know, the good old days when white men ruled unquestioned. God in every home and heart. Fantasy R Us.

  7. abb3w says

    @0, Ed Brayton:

    Leaving aside the fact that the Supreme Court’s division between a “fundamental right” and a “mere liberty interest” is nonsensical and drawn out of thin air from a single footnote in a decision about 80 years ago

    Which to my amateur paralegal skills appears to be footnote 4 of US v Carolene Products.

    On the one hand, howsoever specious the origins, the principle has been recognized for and applied in some 75 years of subsequent case law; Ed’s base objection seems to resemble a Christian Evangelical’s (Article III ignoring) objection to the entire line of Everson-derived case law on freedom of religion.

    Perhaps more persuasively to legal scholars, that originating footnote itself leaves open the possibility of “whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry“. As of the 2003 Lawrence ruling, apparently the Supreme Court is deciding this may be such instance — just as the Brown and Loving cases were.

    Regarless, I don’t understand the precise jargon connotations of “fundamental right” and a “liberty interest”, so I’m probably missing a lot. On the other hand, I’m not missing that both Ed and Staver appear to be trying to be to equate the enshrinement of judicial principles as and inviolable establishment as principles for political argument — when ultimately (and even though the legislative arena is subordinate to the judicial) the judicial arena is subordinate to the political.

  8. dingojack says

    Staver’s whole first paragraph (as quoted) is nonsense because of the following:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

    Dingo

  9. forestdragon says

    Crime against nature? So, does that mean they’re gonna go out and arrest all the bonobos, geese, sheep, ducks, penguins, cattle… [list goes on into infinity...]

    Crime against religious dogma, okay I can see that. Nature, not so much.

  10. John Pieret says

    Now, here, obviously, the issue is, did same-sex marriage become a fundamental right?

    Yep, it did pretty much instantly after Lawrence v. Texas. Ya see, once gay people became full citizens rather than felons, they had the right to the benefits and responsibilities of marriage. Justice Scalia even predicted it in Lawrence:

    State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.

    Scalia, of course, thought that was a bad thing. Some of those things can be given a secular, non-religious basis for keeping them illegal but the basis of a law should not be “because it is against [my] God’s commands.”

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